James Button and APS confidentiality

James Button's account of his time working in the Department of Prime Minister and Cabinet is set to further strain the public service's rigid insistence on complete confidentiality. He talks to Crikey.

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James Button’s account of his time working as a speechwriter in the Department of Prime Minister and Cabinet is set to further strain the public service’s rigid insistence on complete confidentiality from its current and former employees.

Speechless — A Year In My Father’s Business is a combination autobiography, memoir of Button’s father John, and account of James’ time as departmental speechwriter for Kevin Rudd and then “writer in residence and communications adviser” within PM&C. It provides a detailed, though carefully limited, account of Button’s brief role as prime ministerial wordsmith and his exploration of the arcane world of top-level policymaking in PM&C’s Strategy and Delivery Division.

Button is careful not to reveal details of key policy debates on issues such as the Murray-Darling Basin, and his focus is mostly on senior public servants rather than ministers. Rudd himself, despite being a looming presence throughout, has only a cameo in the book; Button isn’t an adviser, he doesn’t work in the prime minister’s office but as a public servant in PM&C and provides only intellectual and policy, not political, content to Rudd’s office. More often Button deals with Rudd’s staff, who increasingly filter back the bad news that Button has (along with a growing proportion of the population of Canberra) somehow displeased the prime minister.

His one extended meeting with Rudd, when he joins the prime ministerial entourage on a flight to Sydney and accompanies him to Kirribilli, is dealt with circumspectly beyond matters directly relating to speechwriting. Few prime ministerial confidences are breached. Indeed, Rudd himself remains an elusive figure, at home in the crisis of 2008-09, increasingly at sea when politics returns to business as usual.

Nonetheless, it’s hard to see how Button, who has long since left the APS, wouldn’t fall foul of the sweeping provisions of s.70(2) of the Commonwealth Crimes Act, which provides:

“A person who, having been a Commonwealth officer, publishes or communicates, without lawful authority or excuse (proof whereof shall lie upon him or her), any fact or document which came to his or her knowledge, or into his or her possession, by virtue of having been a Commonwealth officer, and which, at the time when he or she ceased to be a Commonwealth officer, it was his or her duty not to disclose, shall be guilty of an offence.”

So far so good for Button on that front, though. A spokesperson for PM&C told Crikey “the Department has not referred Mr Button’s book to the AFP.”

But why does Button risk the offence (penalty: two years’ imprisonment)? For one thing, any breach may be minor.

“I reported on two conversations I had with Kevin Rudd while he was prime minister,” Button told Crikey. “But I kept the reporting of them to speechmaking. There was no material in my account that would be a revelation.” And the book is almost entirely about a former government, in one sense: Julia Gillard is almost completely absent from it, as nearly all of it transpires before she replaces Rudd.

And he’s open about the reason in the book. He regards the public service as critical to shaping the nation and the way we debate public policy, and is amazed that it gets so little attention, even from the politicians whom it has served — his own father pays little attention to bureaucratic ranks in his political memoirs. Button is fascinated by the internal operations of the Australian Public Service, the way it develops, argues over and then communicates policy advice to ministers. The secrets here are not the media-friendly ones of raging fights behind closed doors, but of process. Whole chapters are devoted to his own experience of it, which is necessarily that of an outsider, albeit one who increasingly understands the arcane world in which he finds himself.

The book shows him slowly coming to grasp how the APS works, albeit from the specialist perspective of PM&C. Unlike another speechwriter, Don Watson, who railed at bureaucratese and jargon but never really grasped why it is so dominant, Button comes to understand the risk-averse mindset that sees public servants implement rather than do things, to cloak their language in a kind of protective layer that ensures that, no matter what happens, it won’t reflect poorly on a minister.

This is thus no exposé; there are no villains. Then-PM&C head Terry Moran, who recruits Button, impresses him as he goes about trying to improve the APS’s capacity to deliver strategic advice and to deliver programs effectively (thus the name of the Button’s division). The sharp bureaucrats Button finds himself working with — some non-APS staff brought in by Moran to freshen up policymaking, others old hands who’d seen it all before — challenge and engage him. “I had a positive experience in the public service,” Button says.

And yet it’s not hard to see that the same former colleagues he paints so positively might read Speechless with a faint, or maybe not-so-faint, sense of betrayal; conversations and meetings intended to be private are detailed, rarely if ever to anyone’s disadvantage, but there they are on the public record. Those of a malicious mind can always exploit such material.

“What if every former public servant wrote a book like this?” I asked Button. He wrestles with the answer. “There a level of confidentiality needed, obviously,” he said, “although how long that confidentiality should apply is another question. It would have to be handled with care. The answer has to be a case-by-case one.”

But he sees enormous gains from more senior public servants writing memoirs: “It’d be great if public service secretaries wrote memoirs. At the moment all their knowledge about policy and the way they influence decision-makers from below is being lost.”

It’s hard for me to assess Button’s book objectively. I’ve been a speechwriter in a department, and a pseudonymous blogger and Crikey contributor while in the APS. I’d thus be in a poor position to judge Button harshly. Intent is important: Button isn’t damning anyone in his book, except perhaps himself when he talks of his inability to communicate properly with his father. His goal of explaining the operation of senior levels of the APS, and Moran’s efforts to overhaul it, is an honourable one.

“I’m really concerned about the quality of debate,” Button told me. “When Ken Matthews [veteran Howard-era secretary and head of the National Water Commission] retired, he spoke about the importance of the public servants responding when there’s crap in public debate, while being mindful of their ministers.”

Nonetheless, ministers will henceforth have in the back of their minds Button’s example, and perhaps be inclined to insert yet more protective layers of advisers between themselves and public servants.

The broader question, however, is the extent to which the APS can legitimately expect to continue to operate in an environment in which its huge number of staff must preserve virtually total confidentiality. More of that tomorrow …

7 thoughts on “James Button and APS confidentiality”

The problem with s.70 of the Crimes Act is that it prevents many APS officers speaking out against wrongdoing, maladministration, misanagement and even criminal activity because of the shadow of confidentiality obligations. Whistleblower protections do not nearly stretch far enough making it almost impossible for a person to remain anonymous; ostensibly to protect their own positions (and health and wellbeing).

More, not less public servants should be writing memoirs, and not just secretaries but from all levels of APS. There are many events which take place in the APS that are not recorded in history but speak to the very heart of the nature of the public service and the cultural mindset that persists.

There is a logic to the confidentiality process in one aspect. That is, public servants are not elected officials and thus are beholden and in service to the democratically elected government of the day (voted by the people). In a representative democracy this idea presents well, however problems arise on occasion when that very same elected government fails to live up to their side of the democratic equation. What if there are false figures provided to substantiate a policy position, or staff are so dramatically cut without a corresponding cut in workloads to be able to deliver on policy or promises, or politicians say one thing in the public sphere but are in fact ‘lying’ and doing a completely different thing behind the scenes. Worse, what if there is gross maladministration, corruption and fraud. The latter is rare, but it does happen, often due more to incompetence than any good conspiracy theory, but the whitwash put in place breaches all sorts of other obligations to the electorate.

I do think James Button’s expose or those of other public servants, particularly citing examples of Wilkie, Kessing and Toni Hoffman (QLD Health) should be viewed as a breach of confidentiality. Overall without the brave revelations of many whistleblowers or former employees we would all still believe that there were WMDs in Iraq. In my own experience it is sometimes the bureaucrats who withold information from Ministers for various reasons especially if they think it is something they do not wish to hear.

This is not healthy in any democracy. But I agree, it is a complex problem with many facets to consider with respect to the role of public servants. However, overall it is better for democracies to lean towards greater transparency than less, including ideas around accuracy of historical records.

Public servants are also citizens – why should they be completely silenced on matters that affect them in their personal lives as much as their professional lives? The problem with s 70 of the Crimes Act and similar provisions in state legislation is that they lack a human rights perspective. Public servants are not just cigs in the big public service machine – they have rights too and they should not be required to give up a citizen’s basic right to engage in public discussion.

Marilyn public servants have never been “servants of the public”. They have always served the government of the day. It’s absurd to suggest otherwise, and anti-democratic. Why does a public servant have a better understanding of the public interest than a politician who has actually been elected by that public?

The perennial question of what they should do when they know of malfeasance* or even plain stupidity. Apart from deception (eg: Truth Overboard & Dogs on Docks, both the repellent Reith) and deliberate leaking of lies to complicit meeja, Kevin “Andrews” Android over Haneef.
It will be interesting to see what response there will be to Andrew Wilkie’s Private Member’s Bill on whistleblower protection, supposedly supported by Brandis but that would bne only to discommode the government, not because the tories believed (sic!) in it
* Lord Denning, Master of the Rolls when Chief Justice on the Privy Council in 1967 (Initial Services vs Brown) re the duty proscribed by s70, (i) & (ii) of the Crimes Act when he dismissed the “implied obligation of a servant to cover up the malfeasance of his master.
The defence of obeying unjust orders/rules was also dealt with, harshly, during the Nuremberg Trials, notwithstanding the somewhat hysterical performance at the Press Club in 2008 by erstwhile Head of the PM&C office, Peter Shergold “when he spluttered and emphasised inter alia“… public servants DO NOT, I repeat, DO NOT have the right to exercise their conscience …”.
Not a great ethical thinker, obviously.